Tuesday, June 12, 2012

In two days time, I'll be speaking at an event organized by We the People of Kansas, titled "Is Democracy for Sale?" It's an officially non-partisan event--though, given its pretty thoroughly progressive liberal character, I've no doubt that movement conservatives will be thin on the ground. Still, I hope the organizers aims will be fulfilled--I hope we'll have a good conversation that will open a few minds to the terrible consequences of the 2010 Supreme Court decision, Citizens United v. Federal Election Commission. Why terrible? That's what I'll have about 15 minutes to explain. To put it very briefly here, the reason why that decision essentially made it all but impossible to organize our elections in such a way as to make voting--arguably the primary responsibility of citizenship--more important than spending money (and spending lots of it, in particular).

The usual knock against Citizens United has to do with the idea of "corporate personhood," the assumption that, in the eyes of the law, corporations hold the same free speech rights that individual human beings do, meaning that, since current constitutional law mostly guarantees the right to contribute individually to political campaigns as an expression of free speech, so much also the law guarantee the right of corporate bodies to so contribute. Despite being defended by such luminaries at Mitt Romney, this offends a lot of people...

...and rightly so. There is an important principle here, having to do with, as I mentioned before, the fundamentals of citizenship in a democratic society. A society governed by the people (the demos) needs to make sure that it is the people--individual citizens and the parties, groups, and organizations they form--who are truly exercising sovereign power, or at least it is they who are ultimately doing so (as is the case in a representative as opposed to direct democracy, as we have in the United States). This is not, it should be noted, a necessary liberal principle; when people enjoy the liberty to give or withhold consent from a government, and thus put a break upon actions which might threaten their basic freedoms, they don't automatically have self-government: after all, it's always possible to consent to a tyrant (as Hobbes's Leviathan makes clear). So at least for those of us concerned with actual democracy, this is why the point of certain lines in Jefferson's Declaration of Independence--that all men are created equal--is often often captured by way of speaking of "one person, one vote" (as codified in the Supreme Court decision Wesberry v. Sanders). That is, all of us will have a voice in governing ourselves, and all of us will be heard equally.

The idea of corporate personhood potentially threatens this, because when one corporate body purports to speak for individual members of the community, it can, depending on the particulars of the election or venue where citizens make their will known, crowd out or silence voices that otherwise have a right to be heard. Obviously this is a reality in our current election system, where the lack of effective public financing basically makes running for political office, or organizing a political party, or circulating a petition, a question of money (hiring the workers, buying the television advertising time, paying the consultants and pollsters, distributing the posters, etc.). And that, of course, means that under our election system corporations, which generally can amass far more financial resources than an individual citizen, enjoy an distinctly unequal advantage over others holders of fundamental democratic rights.

This is an argument worth making...but if this solitary argument is pushed too far, it might lead one to forget that the above logic--the maximizing potential of forming a corporate body when it comes to running for office or expressing an opinion or influencing legislation--is exactly what explains why we have interest groups, lobbyists, political parties, and dozens of other different types of organizations: religious bodies, charitable groups, non-profits, and more. To attack Citizens United solely because of the nonsense of "corporate personhood" is, ultimately, to attack the Girl Scouts, Greenpeace, the AFL-CIO, Alcoholics Anonymous, and the NAACP.

The proper argument, then, obviously isn't simply that Citizens United (following in the footsteps of earlier cases like Federal Election Commission v. Wisconsin Right to Life) had acknowledged the right which corporations have to spend money in order to get out messages and influence voters on behalf of their preferred candidates and causes, but rather that Anthony Kennedy's majority opinion in Citizens United followed the "money = speech" logic of the 1976 decision Buckley v. Valeo to an extreme end. Kennedy, writing for the majority, asserted that, because the Supreme Court had previously granted to spending money for the promotion of acts of political speech the same constitutional privileges enjoyed by acts of speech themselves under the First Amendment, almost any attempt to recognize that different persons or different corporate bodies may operate on very unequal levels when it comes to the functioning of our democracy was simply illegitimate. As a result, long-standing legislation and judicial precedents on both the state and national level--legislation and decisions which had developed over many decades in response to the obvious and highly unequal fact that, when money basically decides who has access to voters and who doesn't, our democracy doesn't work terribly well--was invalidated. Some of it was fairly recent, like Austin v. Michigan Chamber of Commerce, which had originally defended a restriction on business corporations being able to spend their own normally acquired profits in political contests, and some of it was as old as the 20th-century itself, such as when the Supreme Court put a halt to the Montana Supreme Court's efforts, in Western Tradition Partnership v. Attorney General of Montana, to preserve campaign finance restrictions which Montana had put in place many decades ago in response to the particular forms of corruption which had plagued their state. But whether old or recent, all of these precedents existed because, after different times and places, state and national actors had recognized American democracy becoming overly shaped by the power of money, whether from wealthy individuals or powerful groups, and they wanted, in the spirit of the Declaration of Independence, to guarantee real equal democratic freedom and opportunity to all--not just respecting votes equally, but respecting voices equally as well.

We obviously don't have that today, as the rise of Super PACs and the recent recall election in Wisconsin certainly prove. This is not to say that overturning or event just modifying Citizens United--which I think would be both a delightful turn of events and an extremely unlikely one, though the fact that the Supreme Court has agreed to review Citizens United in light of the Montana Supreme Court's ruling is quite hopeful--would eliminate all the problem of unequal influence in elections. That problem goes far deeper than this 2010 decision, going all the way back to the Court's willingness in 1976 to see in spending money a fundamental act of citizenship, thus granting those with money (again both individuals and corporations) a constitutional right which, in practice, gives them an unequal advantage over those who don't. The problem with Citzens United is that it took much too far a principle which is, to my mind at least, of fairly questionable democratic validity--and thus, I further think, properly of fairly limited constitutional relevance. Money can and should be limited in the role it plays in democratic elections. Citizens United, whatever it's direct provable impact on skyrocketing election costs in America, is a denial of that principle--and hence, as I said, a terrible decision, both for what it said and for the consequences which follow saying so.

Quotes

"Every one of the standards according to which action is condemned demands action. Although the dignity of persons is inevitably violated in action, this dignity would be far less recognized in the world than it is had it not been supported by actions such as the establishment of constitutions and the fighting of wars in defense of human rights. Action must be untruthful, yet religion, science, philosophy, and the arts, the main forms of absolute fidelity to the truth, could not survive were they unsupported by action. Action cannot but be anticommunal in some measure, yet communal relationships would be almost nonexistent without areas of peace and order, which are created by action. We must act hesitantly and regretfully, then, but still we must act."

(Glenn Tinder, The Political Meaning of Christianity: The Prophetic Stance [HarperSanFrancisco, 1991], 215)

"[T]he press was still the last resource of the educated poor who could not be artists and would not be tutors. Any man who was fit for nothing else could write an editorial or a criticism....The press was an inferior pulpit; an anonymous schoolmaster; a cheap boarding-school; but it was still the nearest approach to a career for the literary survivor of a wrecked education."

"Mailer was a Left Conservative. So he had his own point of view. To himself he would suggest that he tried to think in the style of [Karl] Marx in order to attain certain values suggested by Edmund Burke."

(Norman Mailer, The Armies of the Night [The New American Library, 1968], 185)

"All those rely on their hands, and each is skillful at his own craft. / Without them a city would have no inhabitants; no settlers or travellers would come to it. / Yet they are not in demand at public discussions, nor do they attain to high office in the assembly. They do not sit on the judge's bench or understand the decisions of the courts. They cannot expound moral or legal principles and are not ready with maxims. / But they maintain the fabric of this world, and the practice of their craft is their prayer."

(Ecclesiasticus (Sirach) 38:31-34, in The Revised English Bible with the Apocrypha [Oxford University Press, 1989])

"The tendency, which is too common in these days, for young men to get a smattering of education and then think themselves unsuited for mechanical or other laborious pursuits is one that should not be allowed to grow up among us...Every one should make it a matter of pride to be a producer, and not a consumer alone."

(Wilford Woodruff, Millennial Star [November 14, 1887], 773)

"We are parts of the world; no one of us is an isolated world-whole. We are human beings, conceived in the body of a mother, and as we stepped into the larger world, we found ourselves immediately knotted to a universe with the thousand bands of our senses, our needs and our drives, from which no speculative reason can separate itself."

"'Business!' cried the Ghost, wringing its hands again. 'Mankind was my business. The common welfare was my business; charity, mercy, forbearance, and benevolence, were all my business. The dealings of my trade were but a drop of water in the comprehensive ocean of my business!'"

(Charles Dickens, A Christmas Carol [Candlewick Press, 2006], 35)

"The Master said, 'At fifteen, I set my mind upon learning; at thirty, I took my place in society; at forty, I became free of doubts; at fifty, I understood Heaven's Mandate; at sixty, my ear was attuned; and at seventy, I could follow my heart's desires without overstepping the bounds of propriety.'"

"Lack of experience diminishes our power of taking a comprehensive view of the admitted facts. Hence those who dwell in intimate association with nature and its phenomena grow more and more able to formulate, as the foundations of their theories, principles which admit a wide and coherent development: while those whom devotion to abstract discussions has rendered unobservant of the facts are too ready to dogmatize on the basis of a few observations."

"[God] does not want men to give the Future their hearts, to place their treasure in it. . . . His ideal is a man who, having worked all day for the good of posterity (if that is his vocation), washes his mind of the whole subject, commits the issue to Heaven, and returns at once to the patience or gratitude demanded by the moment that is passing over him."

"Money is simply a tool. We use money as a proxy for our time and labor--our life energy--to acquire things that we cannot (or care not to) procure or produce with our own hands. Beyond that, it has limited actual utility: you can't eat it; if you bury it in the ground, it will not produce a crop to sustain a family; it would make a lousy roof and a poor blanket. To base our understanding of economy simply on money overlooks all other methods of exchange that can empower communities. Equating an economy only with money assumes there are no other means by which we can provide food for our bellies, a roof over our heads and clothing on our backs."

"A scholar's business is to add to what is known. That is all. But it is capable of giving the very greatest satisfaction, because knowledge is good. It does not have to look good or even sound good or even do good. It is good just by being knowledge. And the only thing that makes it knowledge is that it is true. You can't have too much of it and there is no little too little to be worth having. There is truth and falsehood in a comma."

"I believe in democracy. I accept it. I will faithfully serve and defend it. I believe in it because it appears to me the inevitable consequence of what has gone before it. Democracy asserts the fact the masses are now raised to a higher intelligence than formerly. All our civilization aims at this mark. We want to do what we can to help it. I myself want to see the result. I grant that it is an experiment, but it is the only direction society can take that is worth its taking; the only conception of its duty large enough to satisfy its instincts; the only result that is worth an effort or a risk. Every other possible step is backward, and I do not care to repeat the past. I am glad to see society grapple with issues in which no one can afford to be neutral."